The Precautions in Self-Drafting Wills With Your Spouse
Lawyers have a monopoly on the legal system. It is not uncommon for me to see a husband write a will for his wife. The husband used a form he got off the internet for $85 and simply filled in the blanks. The wife is fully aware of the will, expressed her wishes and those wishes were accurately represented. If the wife dies and the will is challenged, it could be void and the intestacy laws of the State of Minnesota (the will that the legislature wrote for you) would take effect, contrary to the wishes of the wife. This is because the will was drafted by a layman. To boot, the husband would also be guilty of a misdemeanor and could potentially be fined and jailed for such conduct. Thus is the unauthorized practice of law.
Every single day, I hear how the “system is screwed up”—usually in much more colorful language. This is usually borne out of frustration because things don’t seem “fair” and lawyers can cost a great deal of money. Our American system of law is based on an adversarial model, where the search for truth is the ultimate goal. Our rules of evidence and procedure are designed to protect both parties and cross-examination of a witness under oath is the finest tool to discover truth.
Minn. Stat. 481.02 prohibits any person, upon penalty of imprisonment and fines, except those licensed to practice as attorneys at law, from appearing, counseling, or preparing documents for another person. A person can draft documents for himself, but not for another where his or her rights, in any manner, are affected. This seemingly heavy-handed protection of our monopoly is ultimately for the benefit of both the public at large and the individual.
Our supreme court has written:
“The unauthorized practice of law by laymen is so inimical to public welfare and results in such serious losses to those who engage such service that we feel it again necessary to vigorously condemn this practice and urge the prompt and aggressive prosecution of violations of this provision of the statute.”
Certain words are terms of art, and if misused, can lead to disastrous consequences. Certain time limits must be observed and certain procedures and notices must be complied with or else a valid claim is lost. Judges can only deal with what is placed properly in front of them, and if something is not requested, it usually cannot be ordered. This is due to the history of millions of claims and problems our courts (and the courts of our ancestors) have had to deal with. Our procedures and rules are designed to elicit truth, and everything in our system has a purpose, which after enough thought and research contains a rational core. Lawyers are required to know and use those procedures, and the client has privilege of relying upon our professional knowledge. The collateral consequences and effects of exercising certain rights are where attorneys provide the most benefit because laymen usually cannot understand the vast complex of our legal machine, even laymen that work for attorneys, such as paralegals.
When a client relies upon an attorney, it can be done in confidence because we are required to know what we are talking about, and if we fail, we have malpractice insurance and rules of professional responsibility to protect an aggrieved client. Certainly, attorneys make mistakes, but we also know how to correct them. Relying on a non-lawyer will almost always prove fatal to protecting yourself, and the avenues for protecting your rights or restoring your loss are sharply curtailed. As attorneys, we have done much to earn a detestable reputation, but that is through the actions of a few lawyers that make the headlines, but that does not represent the vast majority of lawyers who do excellent work on behalf of their clients.
This article, authored by Erik Honkanen, was originally published in the Home Town Focus.
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